First Amendment Library

United States v. O'Brien (docket #: 232) (1968) [Findlaw]
Secondary Link	United States v. O'Brien [Legal Information Institute]
Argument Date	01/24/1968
Decided	5/27/1968
Supreme Court Vote	7-1
Supreme Court Ruling	First Amendment claim denied.

Issue	Whether a section of a federal law (50 U.S.C. App. 462 (b)) is unconstitutional as applied to Petitioner because his act of burning his registration certificate was protected symbolic speech within the First Amendment. That is, does the freedom of expression protected under the First Amendment include all modes of communication of ideas by conduct, and, if so, is petitioner’s anti-war conduct within this definition?

Case Summary & Additional Resources

Majority Opinion

Warren, C.J. (Marshall, J., not participating)

Concurring Opinion

Harlan, J., concurring

Dissenting Opinion

Douglas, J.

Lower Court

Arkansas Supreme Court and United States District Court, Eastern District of Arkansas

Lower Court Ruling

First Amendment claim sustained

Oral Arguments

Oral Arguments [Oyez]
-- edited transcript in Irons, Peter, editor, MAY IT PLEASE THE COURT: THE FIRST AMENDMENT (1997), pp. 250-257

Lawyers

For Respondent

Marvin M. Karpatkin argued the cause for respondent in No. 232 and petitioner in No. 233

For United States

General Griswold

News Stories & Commentary

Editorial, "Draft Card Burning," Washington Post, May 28, 1968, p. 20

Editorial, "Students and the Draft," June 4, 1968, p. 46

Graham, Fred, "High Court Backs Ban on Burning of Draft Cards," May 28, 1968, p. 1

Graham, Fred, "Is it Action or 'Symbolic Speech'?," New York Times, June 2, 1968, sect. E, p. 5

Graham, Fred, "New Tide in High Court," New York Times, June 20, 1968, p. 32

Levy, Claudia, "Women Burn Draft Cards at Court," Washington Post, June 18, 1968, sect. A, p. 1

MacKenzie, John P., "Law Against Burning Draft Cards Upheld," Washington Post, May 28, 1968, p. 1

Martin, P.W., The Draft Card Burners," The Nation, July 22, 1968, pp. 42-44

New York Times (AP), "Decision Shocks O'Brien," May 28, 1968, p. 32

Washington Post (AP), "Speedup Sought In Card Burnings," May 29, 1968, sect. B, p. 4

Opinion - Lower Court

O'Brien v. United States, 376 F.2d 538 (C. A. 1st Cir. 1967)

Other

Alfange, Dean, "Free Speech & Symbolic Conduct," 1968 Supreme Court Review 1

Belknap, Michael, "The Warren Court & the Vietnam War," 33 Georgia Law Review 65 (1998)

Bollinger, Lee, THE TOLERANT SOCIETY (1986), pp. 204-212

Ely, John H., "Flag Desecration: A Case Study in the Rules of Categorization & Balancing in First Amendment Analysis," 88 Harvard Law Review 1482 (1975)

Emerson, Thomas, THE SYSTEM OF FREEDOM OF EXPRESSION (1970), pp. 82-86

Fishman, Donald A. , "United States v. O'Brien," in FREE SPEECH ON TRIAL (2003), Richard A. Parker, ed., pp. 130-144

Haiman, F.S., "Non-Verbal Communication & the First Amendment," 68 Quarterly Journal of Speech 371 (1982)

Nimmer, Mel, "The Meaning of Symbolic Speech Under the First Amendment," 21 UCLA Law Review 29 (1973)

Shiffrin, Steven, THE FIRST AMENDMENT, DEMOCRACY, & ROMANCE (1990), pp. 5-6, 81

Smolla, Rodney, SMOLLA & NIMMER ON FREEDOM OF SPEECH (1994), sect. 5.01[2]

Tribe, Laurence, AMERICAN CONSTITUTIONAL LAW (2nd ed., 1988), pp. 799, 819-825

Velvel, "Freedom of Speech & the Draft-Burning Cases," 16 University of Kansas law Review 149 (1968)

Werhan, Keith, "The O'Briening of First Amendment Methodology," 19 Arizona State Law Journal 635 (1987)

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